The Ontario Superior Court of Justice recently confirmed the simple notion that a

condominium lien is not slander of title where the unit owner is in arrears of common
expenses at the time the certificate of lien is registered on title.
#5 1240233 Ontario Inc. v. York Region Condominium Corporation No. 852, 2009
CanLII 1 (ON S.C.)
In this case about a shopping mall converted to a commercial condominium corporation, a
unit owner applied unsuccessfully for an oppression remedy when asked to contribute to the
malls promotional fund. The court found that the corporation can spend money from the
common expenses fund on promotions and marketing. Such expenditures are consistent with
the duty to manage and administer the corporation.
#6 Wentworth Condominium Corporation No. 198 v. McMahon, 2009 ONCA 870
(CanLII)
The central issue was the meaning of the words addition, alteration and improvement
as in Condo Act section 98. The Court of Appeal upheld the trial judges ruling that installing
a hot tub is not an addition, alteration or improvement to the common elements. The court
pointed out that some cases may require a different approach and that each case must be
considered individually.
Metropolitan Toronto Condominium Corporation No. 946 v. J.V.M., 2008 CanLII 69581
(ON S.C.)
Condo corporation obtains a court order to sell a unit owned and occupied by a person with
mental health issues who had breached previous court orders requiring the owner to rectify
unsafe and unsanitary conditions. Court found that the corporation had done its best to
accommodate the owners disability.

Restraining order granted to stop harassment by unit owner
By Chris Jaglowitz on November 7, 2008 Posted in Case Studies
Condo managers and directors can find good news in the April 2008 Ontario Superior Court
decision in MTCC 932 v. Lahrkamp, [2008] O.J. No. 3885. This was a case brought by a
condominium corporation against a self-styled watchdog unit owner who, while opposing
lobby renovations, made repeated requests for records and then relentlessly pestered office
staff when his requests were not filled as fully as he expected.
After finding that the owners conduct amounted to harassment, Justice Backhouse said:
The Condominium Act gives the respondent the right to examine the records of the
corporation. He is not entitled to abuse that right by conducting a campaign by siege against
the management office and directors. Banging on the management door on several occasions,
blocking the door where the staff person was working and positioning his car to impede a
director from proceeding are examples of conduct which are harassing. There are a number of
remedies available to the respondent under the Condominium Act including calling a meeting
of owners, removing directors and suing for oppression. Harassment is not one of them.
When the respondent has been asked to desist by counsel, he has not done so. He has made it
clear that short of a court order he will not stop his harassment. A staff person or director
should not have to feel intimidated and harassed by the respondent.
Her Honour then granted an order:
1. Restraining the unit owner from communicating with any employee of the
management office or member of the board of directors, other than in writing;
2. Restraining the unit owner from entering or coming within 25 feet of the
management office; and
3. Establishing a special procedure for future requests for records by this owner, and
namely that such requests be made in writing, that only one request be made per
record, and that payment for copies be made in advance.
Update (May 5, 2009): Items 1 and 2 of the above order were set aside on appeal in this
case. See 2009 ONCA 362.
Metropolitan Toronto Condominium Corp. No. 1143 v. Peng, 2008 CanLII 1951 (ON
S.C.)
A unit owners failure to respond to demand letters or to mediation or arbitration proceedings
in a rule enforcement case does not permit a corporation to proceed directly to court for a
compliance order. Mediation and arbitration must first be exhausted if available. A similar
case is York Region Condominium Corp. No. 890 v. 1185010 Ontario Inc., 2007 CanLII
44831 (ON S.C.).
Assal v. Halifax Condominium Corp. No. 4, [2007] N.S.H.R.B.I.D. No. 2 (NS H.R.B.)
Condo corporation seeks removal of satellite dish installed by unit owner on non-exclusive
use common elements without authorization and contrary to by-laws. Owner responds by
making a human rights complaint, alleging that the satellite is necessary to provide religious
and cultural education for the owners family, and that the restrictive by-law is discriminatory
as to religion and and ethnic/national origin. The complaint was dismissed for lack of
evidence of discrimination.
Italiano v. Toronto Standard Condominium Corp. No. 1507, 2008 CanLII 32322 (ON
S.C.)
Confirms the power of arbitrators to award successful corporations their full indemnity costs
for arbitration proceedings in rule enforcement cases and for corporations to recover such
costs as common expenses. That power might be more limited, however, if the declaration
and by-laws do not contain strong indemnity provisions. Arbitrators may not award costs in
respect of pre-arbitration proceedings such as mediation or the initial demands for
compliance.
At issue in the case of Jia v. TSCC 1479 is an ugly assault and battery perpetrated by a
condominium superintendent against a visitor. The case offers a number of important lessons
for condo boards and managers.
Lessons:
1. Employers are vicariously liable for the acts of their employees. As always, condo
corporations should be careful about who they hire and should discipline/terminate
employees who demonstrate violent tendencies towards people.
2. It is also important to make it precisely clear as to who the employer is either the condo
or the management firm. This should not be vague or uncertain.
3. Condominium corporations are the occupiers of their common elements and, as such,
have a positive duty to take such care as is reasonable to keep their premises reasonably safe
for all persons in attendance. This means more than clearing ice and snow.
4. It should be a written policy that ejecting trespassers be left to trained security personnel
or, better yet, the police. In this day and age, there is no room for the cowboy tactics
demonstrated in this case. Consider the result if this super had gotten himself shot or stabbed
during a physical confrontation with a trespasser.
5. Management is responsible to oversee staff and has a duty to act immediately and
effectively if they observe staff exceeding their mandates or acting badly towards other
people. Had the property management firm or its employees witnessed the assault and done
nothing, they might have been found partly liable in this case.
6. Have a clear written policy on the role of the concierge/security guard when it comes to
handling keys and permitting access to suites. The confrontation in this case began when the
unit owners and their realtor unsuccessfully sought access to a suite.
7. Condo corporations should ensure that their insurance specifically covers the acts
(including criminal acts) of its employees.
8. As for municipal elections and canvassing, it is both unwise and illegal to interfere with
candidates and their representatives making reasonable access to condominium property for
canvassing or distributing election material. See section 118 of the Condominium Act, 1998.
#6 East of Bay (2003) Development Corp. v. MPAC, 2010 ONSC 3337
Assessing property for tax purposes is a lot like making sausages you probably dont want
to see how its done. In this case brought by the condo developer to set aside MPACs
assessment for the first two years of the condos existence and for a refund of all taxes paid,
the court slapped MPAC for its "questionable" two-stage property tax assessment process for
new condo units. The fact that MPAC was understaffed and unable to cope with a deluge of
new condos on the market was no justification for using a two-stage assessment not expressly
permitted by the Assessment Act, s.33(1).
#4 Nipissing Condominium Corporation No. 4 v. Kilfoyl, 2010 ONCA 217
The Ontario Court of Appeal affirmed that single family occupancy restrictions in a
condominium declaration do not violate the Ontario Human Rights Code. While the courts
reasons were sparse, this troubling issue is now definitively answered. We can tell that the
Ontario Human Rights Tribunal is listening because they relied on the courts decision in
throwing out a human rights complaint made by that same unit owner on the same issue (see
2010 HRTO 1036).
#3 TIE: Metropolitan Toronto Condominium Corporation No. 985 v. Vanduzer, 2010
ONSC 900 and Kilfoyl v. Nipissing Condominium Corporation No. 4 (re costs), 2010
ONSC 6023
In cases where unit owners are responsible to fully indemnify their condo corporation for the
legal costs of enforcing the declaration, by-laws and rules under Condo Act, s. 134(5), the
court can order that the lawyers accounts be assessed. By so doing, the court can ensure that
cases are not overlawyered. See our case comment on Vanduzer and, for a case applying
this principle, see Peel Condominium Corp. No. 452 v. Jaworowski, 2010 ONSC 4567, where
the court reduced the recoverable legal costs by a whopping 66% after finding that the
corporations lawyers had over-resourced a condo lien enforcement case.
#2 Weinberg v. Metropolitan Toronto Condominium Corporation No. 1019, 2010
HRTO 1527
The Ontario Human Rights Tribunal dismissed a unit owners complaint about the condos
enforcement of a no pets clause where an arbitrator appointed under the Condo Act had
already considered the complainants disability and ordered the dogs removal. The case
reminds us that every litigant has only one kick at the can. An arbitrators ruling on an
issue cannot be revisited by another tribunal. Similarly, in Atkinson v. Essex Condominium
Corp. No. 5, 2010 HRTO 123, the Human Rights Tribunal ordered a unit owners complaint
over a no pets clause to be deferred pending the outcome of the condominium corporations
concurrent enforcement application to the Superior Court. Multiplicity of proceedings should
be avoided.
#10 York Region Condominium Corporation No. 890 v. RPS Resource Property
Services, 2010 ONSC 3371
News of several condo frauds broke in 2011 but there was only one reported court decision
on the topic, for a fraud between 2003 and 2005. The management firm here borrowed
money from one condo to finance its own operations and those of its other condo clients and
then repaid the money before year-end so as to avoid detection by the condos auditors. The
plot unravelled when the condo changed managers and the fraudster was short $370,000 at
year-end. The management firm and its principal were liable for breach of contract, breach of
trust and conversion and were ordered to repay the $370,000. The condos claim against its
bank was dismissed. We commented on this case and listed a number of takeaway points.
#9 York Condominium Corporation No. 26 v. Ramadani, 2011 ONSC 6726
The court granted a compliance order requiring the removal of a dog accused of peeing on a
balcony. Despite the owners arguments, the condo was found to have acted reasonably in
demanding the dogs removal. Condominium boards and managers must act reasonably in
enforcing condo rules and what is reasonable will be decided on a case by case basis, but
courts will not substitute their own opinion for that of the board or manager. Justice Strathy
gives a good overview of the current law related to condo rule enforcement and his decision
stands for the proposition that unit owners who think that a condominium must prove an
owners wrongdoing beyond a reasonable doubt before taking steps against them are just
fooling themselves and needlessly risking their financial security. The case also confirms
that the court has a broad discretion in fashioning an appropriate remedy which minimally
affects the unit owner but which effectively solves the problem.
#6 Jakobek v. Toronto Standard Condominium Corporation No. 1626, 2011 HRTO
1901
Just because complaints to the Human Rights Tribunal are often unmeritorious doesnt mean
they can be ignored. In this case, the condo corporation and its management firm failed to
provide a meaningful response and did not participate at the hearing of a unit owners
complaint related to the condos refusal to accommodate a disabled person. After hearing
the unit owners evidence (no one from the condo attended), the Tribunal smacked the
condominium and its management firm with a $5,000 fine, ordered the condo to amend its
bylaws to permit parking mobility-assisting scooters in the garage and ordered the condo and
its manager to read up on the duty to accommodate. Condo corporations that dont actively
respond to and manage HRTO proceedings are playing with fire.
#5 Pantoliano v. Metropolitan Condominium Corporation No. 570, 2011 HRTO 738
This was a human rights complaint by a unit owner over condo pool rules that set separate
swim hours for kids, prohibited children under age 2 from using the pool and completely
banned diapered individuals (baby or adult). The Tribunal confirmed that age restrictions in
recreational facilities at condominium complexes are discriminatory on the basis of family
status and consequently struck down the offending rules and awarded the complaining unit
owner $10,000 as damages injury to her dignity, feelings and self-respect in response to a
hostile environment created by the board during the proceedings. This case reminds us that
the concept of adult-only buildings is utterly dead in Ontario.
#4 Waterloo North Condominium Corporation No. 168 v. Webb, 2011 ONSC 2365
In what is probably only the fifth case of its kind, the Ontario Superior Court granted the
extraordinary remedy of forcing a unit owner to sell and vacate a condo unit. In this case,
featuring a very brief decision, the court cited years of aggression, violence, threats,
vandalism by the unit owner as justification for the remedy. Whats noteworthy is that this
case, like the Korolekh decision of 2010, appears to have been decided on its first appearance,
but for an even more modest cost. This case is a good example of how an efficient,
economical and effective compliance application can deal with anti-social behaviour by
problem unit owners. More like these will follow.
#3 Pate v. Sinclair, 2011 ONSC 3997
Condo resale agreements often include a condition allowing the purchasers to back out of the
deal if their lawyer is not happy with the status certificate issued by the condo
corporation. At issue in this simple discovery motion in a lawsuit over an aborted condo
purchase was whether purchasers must answer questions about their lawyer finding the status
certificate to be unsatisfactory. In a nutshell, while a lawyers opinion and advice to
purchasers would normally be protected by lawyer-client privilege, the privilege related to the
opinion itself was waived by the purchasers when they pleaded in their defence that they
relied on the lawyers opinion in terminating the transaction. Any advice given by the lawyer
as to whether the agreement could legally be terminated would be protected by privilege, but
issues surrounding the purchasers instructions to their lawyer to terminate the transaction
and the issue of whether the lawyer gave any advice are not protected and questions about
those aspects must be answered. While its not very sexy, this case is a gem for real estate
litigators who will get busier when the local real estate market corrects and purchasers seek to
nix their deals. The case also reminds purchasers relying on this clause that they cannot use it
in a capricious manner or in bad faith.

10. Pearson v. Carleton CondominiumCorporation No. 178, 2012 ONSC 3300
Indemnification clauses contained in condo declarations, by-laws and rules do not permit
condo corporations to recover (as common expenses) legal costs incurred in defending
against small claims court actions brought by unit owners. The court vacated a lien registered
by the condo to secure collection of its legal costs incurred where the small claims court
dismissed the unit owners action against the condo but did not award the condo any costs.
9. York CondominiumCorp. No. 42 v. Hashmi, 2012 ONSC 4533
After six years of court-appointed administration, the unit owners of YCC 42 voted
overwhelmingly in favour of returning to self-governance but needed the court to give
detailed directions on conducting the first election of directors. Given that director elections
are amply governed by the Condo Act and the corporations own by-laws, the fact that a court
ruling was required does not bode well for this condos successful rehabilitation from
administration. Let us hope that these unit owners have learned the lesson to pay attention to
the goings-on at their condo and, further, to ignore the siren song of vote for me and Ill
reduce your condo fees which brought this condo and others like it to the brink of disaster.
7. Boily v. Carleton CondominiumCorporation 145, 2012 ONSC 1324
Where the condo corporation breached a settlement agreement made with unit owners, the
court found that the directors had acted in bad faith and were therefore liable personally for
the legal costs incurred by the unit owners in enforcing the settlement. This is among the first
instances where such a costs ruling was made and is probably not the last. While any
decision that visits personal liability on condo directors might potentially scare people away
from holding office, an effective deterrent is needed for directors who abuse their powers and
improperly squelch owners democratic rights. This type of ruling is long overdue.
6. Middlesex CondominiumCorporation No. 232 v. Owners, 2012 ONSC 4819
Faced with an increasingly unhappy ownership, the board commenced an application for
appointment of an administrator. The owners then requisitioned a meeting to remove
directors, prompting the board to make an unsuccessful bid for the requisition meeting to be
delayed until after the application for appointing an administrator was heard. The court
ultimately dismissed the boards application to appoint an administrator, finding that s. 131 of
the Condo Act was designed as a last resort for condominiums in perilous circumstances and
not as a way to allow a board that has lost the confidence of the owners to get their way
regardless of the democratic will of the owners. The court has not yet released its decision
on costs, but given this boards brazen disregard for owners democratic rights, this seems
like a suitable case for the directors to be held personally responsible for the legal costs as in
Boily v. CCC 145 above. The tactics used by the corporation in this instance were despicable.
10. Owners of Strata Plan LMS 2768 v. J ordison, 2013 BCCA 484
the old adage that a mans home is his castle if he lives in a condominium. Let the
word go forth that condos are no longer castles.
6. Davis v. PCC 22, 2013 ONSC 3367
A unit owner challenged the results of a vote for removal and replacement of directors at a
requisition meeting on the basis that the chairperson improperly permitted owners to vote
who were over 30 days in arrears of common expenses, contrary to s. 49(1) of the Condo
Act. The court analyzed each instance and determined that while some owners should not
have been entitled to vote, there were too few improper votes to affect the election
results. The court also confirmed the premise that a chairpersons interest in the outcome of a
meeting does not impugn the integrity of the process. The application was dismissed. As for
costs, the court declined to order costs against the unit owner as she had raised legitimate
questions about the propriety of the voting process and the condo could have kept better
records that might have avoided this situation altogether.

Pearson v. CCC No.178 - The court considered whether a condominium corporation could
recover as common expenses the legal costs it incurred for legal advice related to the defence
of unsuccessful Small Claims Court actions commenced by an owner. In this case, although
the declaration clearly stated that legal expenses incurred by the corporation in taking an
action against an owner could be recovered in the same manner as common expenses, there
was nothing in the declaration that permitted the condo corporation to claim indemnification
for its legal costs in defending an action. As a result, the condo corporations lien was
declared invalid. This case emphasizes the importance of reviewing the indemnification
provisions in the declaration to determine what costs are lienable.
York Condominium Corporation No. 137 v. Hayes - The court declined to order a violent
owner (who was also a director) to sell her unit, stating that such an order should be reserved
for the most egregious cases. In this case, the unit owner engaged in physical assaults, verbal
abuse, threats and intimidation against other unit owners. Surprisingly, however, the court
determined that this behavior did not constitute a most egregious case.
Toronto Common Element Condominium Corporation No. 1508 v. William Stasyna - A
condo corporation was successful in its application for compliance with Section 98 of the
Condominium Act against a number of unit owners who had installed patios and planted
shrubs on the common elements walkway abutting their backyards. However, the court only
awarded costs on a partial indemnity basis because the condo corporation declined to
mediate, even though mediation is not required under the Act for non-compliance with the
Act. Based on this case, any decision by a condo corporation not to utilize
mediation/arbitration should not be made without careful consideration.
Hakim v. Toronto Standard Condominium 1737 - The unit owner had parked his commercial
vehicle in the underground garage, even though this was contrary to the height restriction
contained in the corporation 's declaration. After the Corporation attempted to enforce
compliance, the owner took the position that the corporation's conduct was oppressive and
unfair. The unit owners claim for oppression was unsuccessful. The court determined the
proper test for assessing the corporation's conduct and intention was an objective test looking
at the best interests of the corporation as a whole and not the best interests of the individual
unit owner.
Boily v. Carleton Condominium Corp. No. 145 - The court determined that the board of
directors had acted in bad faith when it attempted to renege on a settlement agreement
previously made with a group of requisitioning owners. The court ordered that the legal costs
of the group of owners be paid by the corporation, but specifically ordered that the legal costs
incurred to enforce the settlement were to be paid by the board members individually, without
any re-allocation to the condominium owners. Because of the courts finding of bad faith by
the board members, there would likely be no directors and officers liability insurance
proceeds to cover those costs for the directors.
Jones v. Tsige - While not a condominium case, this case has relevance for condo
corporations, as it established a new common law tort of invasion of privacy, where the cause
of action is called "intrusion upon seclusion." In this case, a bank employee had improperly
accessed personal information of her spouses ex-wife. Condominium corporations and
property managers who have access to the personal information of unit owners, such as
banking information, arrears, information about tenants and residents in the unit, or even
personal information about an employee or property manager, should take great care in
securing the privacy of this information.
Waterloo North Condominium Corp v. Silacshi - This case indicates that a condominium
corporation may have the ability to force an owner to undo an unapproved change to an
exclusive use common element (such as a balcony), even if many years have passed since the
change was made, and even if the change was made by a previous owner. The court held that
where there is a breach of a statute (such as the Condominium Act), the Limitations Act does
not apply.
Perper v. YRCC 860 In this case, two owners circulated to other unit owners a letter and a
requisition that the judge determined contained false and misleading information about the
financial state of affairs of the corporation. Because of this, the judge concluded that the
requisition was invalid and the board was not in breach of the Condominium Act by not
holding the meeting that was requisitioned.
TSCC 1633 v. Baghai Development Limited In this case, the corporations declaration and
rules prohibited use of the common elements, including sidewalks, for anything other than
ingress and egress. The owner of the unit and the owners tenant, the operator of a grocery
store, maintained that the lease agreement specifically allowed the tenant to display wares in
the common element sidewalks and that the corporation had allowed such displays for five
years and had, in the past, entered into agreements to this effect. The Court of Appeal rejected
the claim by the owner/tenant that the corporations application was barred by the Limitations
Act, and that the corporations enforcement efforts were oppressive. Although the corporation
spent $200,000 on the proceedings, the court only awarded costs in the amount of $100,000.
MTCC 744 v. Bazilinsky This case dealt with a condo corporations attempt to recover its
legal costs relating to its efforts to have a unit owner comply with the no pet provisions in the
declaration. (Apparently, the owner had clandestinely kept a parrot in the unit). Although the
corporation incurred legal fees in excess of $41,000, it was only awarded costs in the amount
of $6,500. The judge said that although Section 134(5) of the Condominium Act entitles the
Corporation to recover costs incurred in obtaining a compliance order (which will be added to
common expenses for the unit), this section is not an invitation to counsel to aggressively
work on a file or unreasonably build up costs.
One common thread arising from all of these cases is that litigation is expensive and the
results are never guaranteed.